Volume 152 — Alabama Reports

Assault With Intent to Murder. Appeal from Marion Circuit Court. Heard before Hon. C. P. Almon. John Tucker was convicted of assault with intent to murder, and he appeals. Tbe defendant was indicted for an assault with intent to murder, and filed several grounds of motion to quash the indictment not necessary to be here set out.

Heard before Hon. H. B. Poster. James Hughes was convicted of assault with intent to murder one Bob Hunter. The assignments of error and the facts of the case are sufficiently stated in the opinion of the court. The attempt to impeach the -witness was as to immaterial matter which is not permissible. — Ortez v. Jewett, 23 Ala. 603; Rosenbaum v. The State, 33 Ala. 361; Bivins v. Brown, 37 Ala. 422; Seales v. Chambliss, 35 Ala. 22; Orr v. The Stale, 107 Ala. 38.

Murder. Appear from Elmore Circuit Court. Heard before Hon. S. L. Brewer. Neal Rigsby was convicted of murder, and he appeals. The defendant and several others were indicted for the killing of Bill McCain by shooting him with a gun. Numerous exceptions were reserved to the introduction of the evidence, but it is deemed unnecessary to set them out here.

Murder. Appeal from Wilcox Circuit Court.. Heard before Hon. B. M. Miller. Bob Andrews appeals from a conviction of murder in the first degree. The defendant, Bob Andrews, was jointly indicted with John Andrews for killing Bama Andrews, the wife of Jim Andrews. It seems from the record that Jim Andrews was also found dead, whether from violence at the hands of other parties, or from self-inflicted violence, does not clearly appear.

Murder. Appeal from DeKalb Circuit Court. Heard before Hon. W. W. Habalson. Alex Davis was convicted of murder in the second degree, and be appeals. The following charges were given at the request of the state: “(1) It is not a mere doubt that authorizes an acquittal. The doubt that authorizes an acquittal must he a reasonable one. (2) You are the sole judges as to the weight that should be given to the testimony. (3) The defendant is a competent witness in his own behalf.

Murder. Appeal from Macon Circuit Court. Heard before Hon. S. L. Brewer. Jim Moss was convicted of homicide and appeals. The facts and matters complained of as error are sufficiently stated in the opinion of the conrt. The Constitution guarantees to the accused the right to have compulsory process for obtaining witnesses in its favor and the body was clearly competent as evidence. — 1 Elliot on Evidence, Sec. 24; 2 Elliott on Evidence, Sec. 689-691.

Manslaughter. Appeal from Limestone Circuit Court. Heard before Hon. Oceola Kyle, Special Judge. Ernest McEwen tvas convicted of manslaughter in the first degree, and he appeals. The facts are sufficiently stated in the opinion of the court.

<p> Murder. </p> <p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. John H. Disque.</p> <p>Lon Prater was convicted of murder in tbe first degree and appeals.</p> <p>Tbe bill of exceptions cannot be considered as tbe order granting further time for signing was made after tbe expiration of tbe time of tbe order, granting tbe first extension. — Henderson v. Roy, 40 Sontb. 59. There is no question presented other than on tbe bill of exceptions.</p>

Sencimg Letter Tending to Provoke a Breach of the . Peace. Appeal, from Shelby Circuit Court. Heard before Hon. A. H. Alston. Wiley T. Johnson was convicted of sending a threatening letter tending to provoke a breach of the peace, and he appeals. The first count in the indictment was subject to the demurrer interposed thereto. — Sykes v. The State, 67 Ala. 70. Demurrer should have been sustained to the second count. — Lang-ford v. The State, 45 Ala. 26.

Carrying Concealed Weapon. Trial; Instructions Assuming Facts. — Where the testimony for the defendant tended to show that the general character of the witnesses for the state was bad, and that they were not worthy of belief, on oath, a charge asserting that they had been impeached, and that the jury might look to the fact, in connection with all the other evidence in the case, in determining what weight they would give to their evidence, was bad for assuming a fact, and…

Receiving Stolen Goods. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Mite Oddo was convicted of concealing stolen property, and he appeals. The indictment in this cause charged that the defendant did buy, conceal, or aid in concealing certain personal property of the Bessemer Furniture Company, a corporation, knowing that it was stolen, and not having the intent to restore it to the owner. The facts are sufficiently stated in the opinion.

Embezzlement. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brewer. Jim Knight was convicted of embezzlement, and appeals. For former report of this case see 147 Ala. 104. The money was not sufficiently described, and the demurrer going to that feature of the indictment should have been sustained. — Knight v. The State, supra; State v. Murphey, 6 Ala. 845; Du-13 ois v. The State, 50 Ala. 139; Grant v. The State, 55 Ala. 291; Burney v. The State, 87 Ala. 80.

Selling Spirituous, Vinous or Malt Liuors Without License. Appeal from Barbour Circuit Court. Heard before Hon. A. A. Evans. Dan Johnson was convicted of selling spirituous liquors without a license and contrary to law. The defendant was indicted for retailing spirituous, vinous, or malt liquors without license and contrary to law.

Discharging Gun Along Public Highway. Appeal from Perry Circuit Court. Heard before Hon. B. M. Miller. Spence Scott was convicted of firing a gun along or across a public highway and he appeals.

Carrying Concealed Weapon. Appeal from Henry Circuit Court. Heard before Hon. H. A. Pearce. Stovall Cook was convicted of carrying a concealed weapon, and be appeals.

Habeas Corpus. Appeal from Montgomery City Court. Heard before Hon. W. H. Thomas. J. D. Compton filed petition to be discharged on babeas corpus. From an order denying the writ, and remanding the petitioner to the custody of the extradition agent of the state of Georgia, he appeals. Section 5228, Bey. St. U. S. provides for' a method that is summary in its effects, and must, therefore be strictly complied with. — Ex parte Morgan, 20 Fed.

<p>1. Criminal Law; Complaint; Affidavit; Amendment. — Where an affidavit charged that the affiant had probable cause for believing and did believe that the offense of petit larceny had been committed, and charging a named person with committing the offense, it was proper to allow an amendment to the affidavit, properly charging the offense designated in the first affidavit.</p> <p>2. Same; Appeal; Harmless Error. — Where the original affidavit was amended and trial had upon the amended affidavit it is immaterial whether the original affidavit was sufficient or not, and the rulings of the trial court on the original affidavit, if error, were harmless.</p> <p>3. Same; Affidavit; Sufficiency. — An affidavit charging that af-fiant had probable cause for believing and did believe that a named person feloniously took and carried away eight chickens of the value of $1.25, the personal property of affiant, is a sufficient compliance with section 4600, Code 1896, to support a prosecution for petit larceny.</p> <p>4. Trial; Instruction; Suffieieneij. — A general affirmative charge which failed to submit the credibility of the testimony to the jury is bad in form.</p> <p>5. Larceny; Evidence; Ownership. — Notwithstanding the affidavit charged felonious taking of eight chickens, a conviction for larceny may he had under such affidavit on proof of the taking of seven chickens belonging to the affiant.</p> <p>6. Criminal Law; New Trial; Appeal. — The rulings of a trial court on an application for a new trial in a criminal case are not reviewable on appeal.</p>

<p>Appeal; Matters Reviewatle ; Record. — The Supreme Court can only pass upon the action of the trial court in giving or refusing charges, and where the record does not show the action of the trial court on such charges they are not presented for review.</p>

Arson. Appeal from Bibb Circuit Court. Heard before Hon. B. M. Miller. Jim Davis was convicted of willfully setting fire to a eorncrib, and be appeals. Tbe indictment charges that, before the finding, Jim Davis willfully set fire to and burned a eorncrib of P. D. Lee, alias Joe Lee, against the peace and dignity of the state of Alabama.

Selling Liquor Without License. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Jordan Dillard was convicted of unlawfully selling intoxicants, and be appeals. The original affidavit in this cause was in tbe following language: “State of Alabama, Jefferson County. City Court of Bessemer.

Selling Liquor Without License. Appeal from Marengo Circuit Court. Heard before Hon. John T. Lackland. Joe Colling wag convicted of gelling intoxicating liquorg without a licenge and contrary to law, and ap-pealg. The factg sufficiently appear in the opinion. The very essence of criminality is wanting, i. e., an intent to do wrong.— Duncan v. The State, 7 Humph. 148; Brent v. The State, 43 Ala. 302; Boyd v. The State, 53 Ala. 601.

Disbarment Proceedings. Appeal from Shelby Circuit Court. Heard before Hon. A. H. Alston. Proceedings by the Alabama State Bar Association for the disbarment of Wiley T. Johnson, a licensed practicing attorney. From a judgment of disbarment, Johnson appeals. It was based upon an affidavit, signed by W. B. Brown, by Borden H. Burr, the solicitor of the Seventh judicial circuit.

Damage for Personal Injury to Passenger From Violence by Another Passenger. Appeal from Montgomery City Court. Heard before Hon. A. D. Sayre. Mary Whatley sues the Montgomery Traction Company to recover damages for injuries and insult inflicted upon her by another passenger on defendant’s car. There was judgment for plaintiff, and defendant appeals.

Action for Injury to Passenger. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action bj E. D. Taylor against the Birmingham Railway, Light & Power Company. From a judgment in favor of plaintiff, defendant appeals. This is an action of damages for personal injuries received by a passenger in alighting from a car on defendant’s line.

Injury to Employe. Appeal .from Annistou City Court. Heard before Hou. Thomas W. Coleman, Jr. Action by C. W. Grissom as administrator against the A. & B. Air Line Ry., for the death of his intestate alleged to have been an employe of defendant. There was judgment sustaining demurrers to tbe complaint, and plaintiff appeals.

Action for Injury to Person Grossing Trade. Appeal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Action by Myers Brown against the Birmingham Railway, Light & Power Company for injuries resulting from a collision between defendant’s street car and a vehicle driven by plaintiff. From a judgment for plaintiff, defendant appeals.

Action for Injury to Person on Track. Appeal from Walker Law and Equity Court. Heard before Hon. Thomas L. Sowell. Action by Mary Duncan against the St. Louis & San Francisco Railroad Company. Prom a judgment for defendant, plaintiff appeals. This was an action of damages for injury occasioned by being struck by an engine of the defendant. The facts are sufficiently set out in the opinion of the court. The case was tried on counts 4, 5, 8, and 9.

Action for Death of Passenger. Appeal from Butler Circuit Court. Heard before Hon. J. C. Richardson. Action by W. L. Perkins, as administrator of Isaac R. Dyke, against the Louisville & Nashville Railroad Company. Prom a judgment for plaintiff, defendant appeals. This was an action by W. L. Perkins, as administrator of Isaac R. Dyke, to recover damages for the death of his intestate.

<p> Action for Damages for Injury to Passenger. </p> <p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. A. D. Sayre.</p> <p>Action by W. E. Haygood, a passenger, against the Montgomery Traction Company for injuries received while attempting to alight from one of its cars. From a judgment for plaintiff, defendant appeals.</p> <p>The trial was had on Feb. 14th, and judgment entered as of that date. On March 13th nest, the court extended the time for the signing of the bill of exceptions to and including March 30th, 1907. On April 1st, by agreement of the attorneys the time for signing was extended and the bill was signed within the last extension. However, the bill was signed within thirty days after the action of the court on the motion for new trial.</p> <p>In cases where the evidence is equally balanced, the verdict of the jury should be against the party on whom rests the burden of proof. — Vandeventer v. Ford, 60 Ala. 610; Wheeler v. McGwire, 86 Ala. 406; Birmingham Ü. Ry. Go. v. Hade & Go., 90 Ala. 12; Montgomery v. Grossioaithe, 90 Ala. 574; Behrman v. Newton, 303 Ala. 531; N. O. é St. L. Ry. Go. v. Hammond, 104 Ala. 201; Turrentme v. Griggshy, 118 Ala. 380; Pullman Palace Oar Go. v. Adams, 120 Ala. 24. If, after allowing all reasonable presumptions of the correctness of the verdict, the preponderance of the evidence against the verdict is so decided as to clear] y convince the court that it was wrong and unjust the judgment refusing the new trial should be reversed. — Gohh v. Malone, 92 Ala. 330; Mary Lee G. cC- R. R. Go. v. Ghamhliss, 97 Ala. 188; Shepard v. Dotoling, 103 Ala. 566; Bir. Elec. Ry. Go. v. Glay, 108 Ala. 236; Davis v. Miller, 109 Ala. 600; Teague, et al. v. Bass, 131 Ala. 422.</p> <p>After the time for filing bills of exception has expired the attorneys have no right by agreement to extend the time. — Ross Furnace Go. v. Glasscock, 86 Ala. 244; Rosson v. The State, 92 Ala. 76; Richter v. Koopman, 131 Ala. 400; Acts 1900-01, p. 830. It follows that the charge requested, not having been made a ground of motion for new trial cannot be considered. The court properly refused to grant motion for a new trial. — Tenn. G. I. •& R. R. Co. v. Stephens, 115 Ala. 451; L. & N. R. R. Go v. Bernheim, 113 Ala. 489.</p>

Action for Damages for Injury to Passenger. Appeal from Montgomery City Court. Heard, before Hon. A. D. Sayre. Personal injury action by Mead G. Bozeman against the Montgomery Traction Company. From a judgment-denying a new trial, defendant appeals. This is an action for damages for injury received by appellee resulting from a collision between cars on defendant’s line.

Action for Damages for Injury to Passenger. Appeal from Madison Circuit Court. Heard before Hon. S. S. Pleasants, Special Judge. Action by O. T. Cunningham against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. The nature ancl character of the action and the facts upon which the opinion is rested sufficiently appear therein.

Action for Damages for Death of Employe. Appeal from Birmingham City Court. Heard before Hon. Charles A. Senn. Action by Mary Cogbill, administratrix, against the Louisville & Nashville Bailroad Company, to recover damages for the death of her intestate caused by a collision of two trains. The facts are sufficiently stated in the opinion of the court. From a judgment for defendant plaintiff appeals. Affirmed..

Action for Damages for Injury to Employe. Appeal from Birmingham City Court. Heard before Hon. Charles H. Ferguson. Action by Melville M. Talley against tbe Pioneer Mining & Mfg. Co., for damages for injuries received while out of tbe place of bis employment on bis own private business, and at another point on tbe premises of tbe master. Complaint was drawn under Employer’s Liability Act. There was judgment for plaintiff and defendant appeals.

Action for Damages for Betting off Explosive Near House Appeal from Bibb Circuit Court. Heard before Hon. B. M. Miller. Action by Jennie Doali against the Bessemer Coal, Iron & Land Company and others. Judgment for plaintiff, and defendants appeal. This was an action begun by appellee against appellant, J. S. Griffin, and J. A. McKinney to recover damages, for personal injury resulting from setting off a blast of powder so near to plaintiff’s house as to severely injure her.

Action for Damage for Injury to Employe. Appeal from Geneva Circuit Court. Heard before Hon. H. A. Pearce. Action by A. L. Watford against the Alabama & Florida Lumber Company. From a judgment for defendant, plaintiff appeals. Action for damages for injury to an employe happening at the sawmill of defendant in the state of Florida. It is unnecessary to set out the first count.

Action for Damages for Injury to Employe. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action by T. W. Gainer against the Southern Ry. Co. for damages done to him while engaged in the duties of the master. There was judgment for defendant, and plaintiff appeals. Affirmed. -Extraordinary risks are not assumed by the servant unless they are comprehended by Mm. — Postal Tel. Co. v. Hulsey, 132 Ala. 444; Osborn v. Ala.

Action for Damages for Killing Stoclc. Appeal from Montgomery Circuit Court. Heard before Hon. J. C. Richardson. Action by EdwaircL Haardt against the Central of Georgia Railway Company for damages for killing a cow. At the conclusion of the evidence the court gave the general affirmative charge for the defendant and there was verdict and judgment accordingly.

Action for Damages for Injury to Stock. Appeal from Walker Law and Equity Court. Heard before Hon. Thomas L. Sowell. Action by John A. Douglas against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. This was an action by appellee against appellant to recover damages for the killing of a mare and injuring a mule colt. The amendment and motion to strike are sufficiently set out in the opinion of the court.

Action for Damages for Failure to Deliver Goods. Appeal from Montgomery City Court. Heard before Hon. A. D. Sayre. Action by J. M. Henderson against the Central of Georgia Rad way Company. Prom a judgment for plaintiff, defendant appeals.

Action for Damages for Destroying Fence by Fire. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Action by diaries C. Dickens against tbe Southern ■ Railway Company. From a judgment for plaintiff, defendant appeals. This was an action begun by appellee against appellant for negligently permitting fire to escape from its engines and communicate itself to the premises of plaintiff.

Action for Damages for Destruction of Houses by Fire. Appeal from Morgan Circuit Court. Heard before Hon. E. B. Almon. . Action by S. L. Sherrell against tbe I/ouisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. For former report of this case, see 148 Ala. 1. The nature and character of the action and the facts concerning the same are sufficiently stated in the opinion of the court.

Action for Damages to Trespass to Land. Appeal from Morgan Circuit Court. Heard before -Hon. Marvin West, Special Judge. Action by Bufus P. McIntyre against the Southern Bailway Company. Prom a judgment for plaintiff, defendant appeals.

Action for Damages for Injury to Steamboat. Appeal, from Lauderdale Circuit Court. Heard before Hon. Ed B. Almon. Action by John T. Reeder against the Southern Railway Company for damages to plaintiff’s steamboat. From a judgment for plaintiff, defendant appeals.

Action for Damages for Tv jury Received Toy Falling Through. Bridge. Appeal from Coffee Circuit Court. Heard before I-Ion. H. A. Pearce. Action by Annie E. Bullard against tbe town of Elba.

Ejectment. Appeal from Randolph Circuit Court. Heard before Hon. S. L. Brewer. Ejectment by John Doe, on the demise of Chamberlain, Miller & Company, against Thomas Abbott and others. Judgment for defendant, and plaintiffs appeal. This is a common-law action of ejectment, at the suit of Chamberlain, Miller & Co. and the individuals composing the. firm against Thomas Abbott and others, for a recovery of certain lands mentioned therein.

Ejectment. Appeal from Houston Circuit Court. Heard before Hon. H. A. Pearce. For a former report of tbis case, see 146 Ala. 213, 40 South. 752. Ejectment by Minnie Elliott against B. E. Napier and others. Judgment for plaintiff, and defendants appeal.

Ejectment. Appeal from Dale Circuit Court. Heard before I-Ion. A. A. Evans. Ejectment by T. H. McEntyre against Nettie F. Hair-ston and others. From a judgment for defendants, plaintiff appeals.

Ejectment. Appeal from Butler Circuit Court. Heard before Hon. J. C. Richardson. Ejectment by L. S. Peavy and others against Jim Griffin and others, statutory in its nature. There was judgment for defendant and plaintiff appeals. Petition did not set out sufficient facts to give the court jurisdiction to order the sale on which the title is based.- — White v. McCor vey, 63 Ala. 436; 73 Ala. 116.

Ejectment. Appeal from Houston Circuit Court. Heard before Hon. Terry Bichardson, Special Judge. Ejectment by H. C. Jordan and others against Jane Everett and others. From a judgment for plaintiffs, defendants appeal. The cause was tried on an agreed statement of facts, as follows: The land in controversy originally belonged to the partnership of J. Jordan & Co., composed of Junius Jordan and F. Bosa Simonson.

Bill by Creditors to Reach Unpaid Stock Subscription. Appeal from Montgomery Chancery Conrt. Heard before Hon. W. L. Parks. Bill by J. L. Hall and another, as trustees, etc., and others, against the Alabama Terminal & Improvement Company and others. From a decree overruling a demurrer to the bill, defendants appeal; and from a decree dismissing an amended bill as to defendants O. C. Wiley and others, complainants prosecuted a cross appeal.

Bill to Enforce Mechanic’s Lien. Appeal from Birmingham City Court. Heard before Hon. Charles W. Fergtjson. Bill by the Wood-Dickerson Supply Company and another against Jennie E. Coccioia and others to enforce a materialman’s lien. From a decree for complainants, defendants appeal.

<p> Injunction to Prevent Gutting Off Water Supply. </p> <p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. C. W. Ferguson.</p> <p>Bill by W. T. Ward, as a citizen of Birmingham, to enjoin the Birmingham Waterworks Company from cntting off the water supply from his residence, because of his refusal to submit to an extra charge for lawn sprinkling. From a decree sustaining a demurrer to the bill, complainant appeals.</p> <p>The facts made to the bill are briefly that respondent furnished water to complainant’s dwelling, all of which water passed through one pipe from respondent’s water main to complainant’s house. The bill sets out the domestic rates named for such service in a contract between the city of Birmingham and respondent, and alleges that, in addition to these rates and in violation of the contract, respondent has made a charge against complainant of $2 in advance for the months of April, May and June, and also a charge in advance of $2 for the quarter beginning July 1st, and that said charge was for the sprinkling of complainant's lawn; that complainant declined to pay this charge in excess of the contract and, respondent having threatened to cut off his water supply unless this amount was paid, this bill was filed to enjoin such action. The demurrers raised the question as to whether or not the sprinkling of the lawn is covered by the contract for the use of water for domestic purposes, asserting that it is not.</p> <p>The Birmingham Water Works Co. was bound to furnish water under its contract rate to the citizens of Birmingham and the use of water for sprinkling complainant’s lawn was included on the domestic rate, stipulated in said contract.' — Crosby v. City Council of Montgomery, 108 Ala., 498; Smith v. Bir. W. W. Co., 104- Ala. 315; Bir. W. W. Co. v. Truss, 135 Ala. 330; Capital City Water Co. v. The State, 105 Ala. 406. The words, “domestic purpose” includes all uses which contributes to the health, comfort and convenience of the family in the enjoyment of their dwelling as a home. — Crosby v. City Council of Montgomery, supra; Gallagher v. Philadelphia, 4 Pa. 80; Bristol Water Works Co. v. Oren, 15 Q. B. Div. 637.</p>

Bill to Enjoin the Voting of Corporate Stock, and to Require its Return to the Corporation Treasury. Appeal from Mobile Chancery Court. Heard before Hon. Thomas H. Smith. Suit by Manuel Cañizas and others against Andrew Dacovich and others to enjoin respondents from voting or otherwise exercising- any rights under a transfer of ■corporate stock to them which had been purchased for the corporation, and to require a return of said stock to the corporation treasury.

<p> Bill to Enforce Collection of Amount Due Complainant’s Estate From Respondent’s Estate, and to Subject Land to the Payment Thereof. </p> <p>Appeal from Cherokee Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>Bill by B. I. Hughes, as administrator of the estate of T. F. Howell, deceased, against H. C. Howell and others. From a decree for defendants, complainant appeals.</p> <p>The original bill in this canse was filed by B. I. Hughes, as administrator of the estate of T. F. Howell, and the heirs of T. F. Howell joined with him as parties, complainant. The executors and the heirs at law of George Howell, deceased, are made parties defendant. The allegations of the original bill are that George Howell died in Cherokee county about the year 1878,. leaving a last will and testament in which the parties defendant as executors 'were named as executors of his estate; that he left about 600 acres of land and some personal property; that in 1879 the executors were appointed and qualified; that in 1885 the executors filed an application to the probate court, setting forth the debts due by the estate, the amount of personal property of the estate, and that the personal property was. wholly insufficient to pay the debts of the estate, and praying for an order for a sale of the lands to pay the debt. A copy of the petition, proof, and the order decreeing the sale are exhibits of the bill. It is then alleged that to have sold the lands at that particular time would have been to sacrifice the assets of the estate, and that the executors applied to a certain named bank and procured the sum of $6,071, with which to payoff the debts of the estate and prevent a sale of the land; that the executors in their official capacity executed the note, but before they could negotiate it they- had to procure security and indorsement, and that T. F. Howell' became the indorser on the note. It is alleged that the money was used to pay off the debts of the estate; that the lands were never sold under the order of the sale,_ and that the executors left the state; that they are wholly insolvent; that they never paid or offered to pay the notes; and that the administrator of T. F. Howell had to pay said notes, and did pay the same ont of the assets of the estate of T. F. Howell, deceased, by and on account of his indorsement of said note. The bill seeks to sell the land and apply the proceeds, first, to the payment of the debts of the estate of George Howell, and, if any over, for distribution.</p> <p>The amended bill is in the name of Hughes as admin* • istrator as the sole party complainant, and the same parties defendant are named in the amended bill. Substantially the same facts as to dates and as to the indebtedness of the executors of George Howell to the estate of T. F. Howell are made, and it is further alleged that the settlement of George Howell’s estate has never been made, but that the administration is still pending in the probate court of Cherokee county. It is further alleged that in December, 1871, George Howell became one of the securities on the official bond of one Moy as the administrator of the estate of Hudson Kirk; that said Moy duly qualified and entered on the discharge of his duties as the administrator of the said Hudson Kirk, under and by virtue of the bond on which George Howell was a securety. It is alleged that the heirs and devisees of Hudson Kirk filed a bill of complaint against Moy and his bondsmen in the chancery court of Cherokee county, and that H. G. and J. H. Howell, as executors of George Howell, were made parties defendant as executors of one of the sureties, and suffered the decree pro confesso to be rendered against them. It is alleged that in 1883 the chancery court of Cherokee county rendered a final decree in said cause in favor of the complainants and against Moy and his official bond in the sum of $12,000. It is alleged that an appeal was taken to the Supreme Court of Alabama, and a decree there rendered affirming said final decree. All these proceedings are made exhibits. It is then averred that the amounts or items of debts due by the estate, of George Howell, for which the note was executed upov which complainant’s intestate became the indorser, were the sum of $6,000, which the executors were compelled to pay upon the decree in favor of the Kirk heirs above noticed, and that it was so used to pay off and discharge said final decree. The other facts alleged are in all respects the same as in the original bill.</p> <p>Demurrers were assigned to the amended bill as follows: (1) For that the said amended bill is a departure, in that the said original bill sought to have the complainant subrogated to the rights of H. C. Howell and J. H. Howell, as executors of the estate of George W. Howell, deceased, and to the rights of the creditors whose demands against said estate were paid by and with the effects of the estate of T. F. Howell, deceased, while the amended bill seeks to have the complainant subrogated to the rights of the heirs, devisees, distribu-tees, and legatees of the estate of Hudson Kirk. (2) The said promissory note of the complainant for money paid on said note is not a claim against the estate of George W. Howell. (3) Said H. O. and J. H. Howell were not authorized to borrow money and to charge the estate of said decedent with the money so borrowed. (4) For that the said promissory note shows on its face that it was the individual obligation of H. O. and J. H. Howell, and not a claim against the estate. (5) Said promissory note was barred by the statute of limitations before the filing of the bill. (6) That the claim on account of money paid is barred by the statute of limitations. (7) For that it appears that there was no valid lien or incumbrance on said land at the time said money was borrowed to pay the claim. (8) That the allegations of said bill do not show such a state of facts as entitle the complainants to he subrogated to the rights of the heirs of the said Hudson Kirk. There are numerous other demurrers.</p> <p>The cause was submitted to the chancellor on demurrer and on motion to dismiss for want of equity, and a decree was entered sustaining the demurrers and motion to dismiss. From that decree this appeal is prosecuted.</p> <p>The decree of the probate court of Cherokee county was conclusive that George Howell owned the lands described therein, that he owed debts on the date of his death and that his personal estate was insufficient to pay his debts; and it cannot he collaterally attacked since the petition on which it was rendered contained the necessary jurisdictional averments. — Neville v. Kinney „ 28 South. 452; Cobb v. Ga/rner, 105 Ala. 467; Ghar-devoyne v. Lynch, 82 Ala. 376; Grubb, v. Galloway, 93 Am. St. Bep. 764. This decree was not void. — Hamil-tonn v. Hardy, 52 Ala. 291; Bowling v. Smith, 79 Ala. 535; J ones v. Woodstoch, 95 Ala. 551; King v. Kent, 29 Ala. 542. On the foregoing authorities the demurrer and motion to dismiss the amended bill for want of equity are necessarily a collateral attack. The decree of the probate court of Aug. 10, 1885,, constituted an equitable lien on the lands therein described in favor of the creditors of the estate of G. W. Howell, deceased. — • Chapman v. Sullivan, 27 N. E. 425; DeConcillio v. Browning, 51 N. J. E. 532; Taylor v. Taylor, 48 Am. Dec. 277; 95 Am. Dec. 767; .12 Am. St. Bep. 383; 35 Am. St. Bep. 419; 57 Am. Bep. 187. T. F. Howell, if living, would be subrogated to or would be an equitable assignee of the decree against the estate of George W. Howell, as be was a tenant in common of the ownership of the land described in the decree. — Authorities supra; Faegin v. Kendall, 43 Ala. 628. The bill having been filed within twenty years of the rendition of the decree, the right was not void either by limitation or laches.— Bizzell v. Nnx, 60 Ala. 281; DeBardelaben v. Stoudcn-mirc, 82 Ala. 574; Bozeman v.. Bozeman, 82 Ala. 389; Garrett v. Garrett, 69 Ala. 429; Bass v. Bass, 88 Ala. 408. The amended bill was not a departure. — Ingraham v. Foster, 31 Ala. 123; Fite, et al. v. Kennamer, 90 Ala. 470.</p> <p>The petition for the sale of the lands did not contain the necessary averments to give the court granting the decree jurisdiction. The petition fails to aver the fact of the will and that the petitioner was executor, and that there was no power in the will to sell and that the personal property was insufficient. — Sec. 155 and 156, Code 1896; McCollum v. McCollum, 33 Ala. 712; M. E. Church v. Price, 42 Ala. 49; Buck v. Frank, 51 Ala. 94; Wilson v. Holt, 83 Ala. 538; Hall v. Hall, 47 Ala. 290; Meddcrs v. Mcdders, 73 Ala. 356; Quarles v. Campbell, 72 Ala. 64; Mosely v. Tuthill, 245 Ala. 621.</p> <p>Under the facts stated, the right of subrogation did not exist. — Chapman v. Abraham, 61 Ala. 108; if, & D. R. R. Co. v. Sibert, 97 Ala. 393; Pettus v. McKinney, 74 Ala. 108; Bohlman v. Lowman, 74 Ala. 507; Scott v. Mort Go., 127 Ala. 159. The claim was barred by the statute of limitations and laches. — Scott v. Ware, 65 Ala. 183; Steele v. Steele, 64 Ala. 439; Teague v. Cor-bett, 57 Ala. 643; Trimble v. Farriss, 78 Ala. 266; Gary v. Simmons, 87 Ala. 529; Warren v. Hearn, 82 Ala. 554; Chmdler v. Wynne, 85 Ala. 308; Miller v. Irby, 63 Ala. 484; Bond v. Smith, 2 Ala. 660; Grimball v. Mastm, 77 Ala. 559. And money arising írom tbe sale of land is regarded as land as to these matters. — McDonald v. Carnes, 90 Ala. 149; Chancy v. Chaney, 38 Ala. 35; Wil-Wilamson v. Matón, 23 Ala. 488; Teague v. Corbett, supra.</p>

Bill to Quiet Title. Appeal from Jefferson Chancery Court. Heard before Hon. A. I-I. Benners. Bill by Rudolph Richards and others against Steiner Bros., to quiet title to certain lots in the city of Birmingham. From a decree sustaining demurrers to the bill this appeal is prosecuted.

Bill to Enjoin the Water Works Company From Charging and Collecting More Than the Schedule Rate for Water: Appeal from Jefferson Chancery Court. Heard before I-Ion. A. H. Benners.

Bill for Cancellation of Deed. Appeal from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by Lurena Roebuck against John F. Leonard, for the cancellation of a deed. Prom a decree for plaintiff defendant appeals. It being shown that complainant could read, write and cipher and that they understood what they were doing, they were not entitled to the relief sought. — Goetter-Weil & Co. r. Picltett. 61 Ala-386.

Bill to Declare a Gorporation Insolvent, for a Receiver, and to Avoid Certain Transfers of Property. Appeal from Covington Chancery Court. Heard before Hon. W. L. Parks. Bill by Frankfort Chair Company to declare a corporation insolvent, to have a Receiver appointed to take charge of the effects of the same, and to declare certain transfers of corporate property to the officers thereof fraudulent and void as to creditors. From a decree for complainant, respondents appeal.

Bill to Enjoin Use of Right of Way Until Compensation Made. Appeal front Mobile Chancery Court. Heard, before Hon. Thomas H. Smith. Bill by Fowl River Lumber Company against Mobile & Western Railway Company and others to enjoin the operation of a road over a certain right of way for-which there has been no condemnation procedings nor payment made. Upon the coming in of tbe sworn answer denying the allegations of the bill motion was made to dissolve the temporary injunction.

Bill to Subject Land to the Discharge of Lien. Appeal from Lauderdale Chancery Court. Heard before Hon. W. H. Simpson. Bill by Eliza Tate, revived in tbe name of Joseph B. Tate, her personal representative, against Herman Eck and others to enforce a contract lien npon the shares of' co-parceners. From a decree for complainants respondents appeal.

Bill to Enjoin Obstruction of Highway. Appeal from Birmingham City Court. Heard before Hon. C. G. Nesmith. Bill by tbe city of West End against Jesse Eaves to enjoin tbe obstruction of an alleged public highway by him. From a judgment for respondent, complainant appeals. tbe act done by Powell and tbe public indicated an acceptance of tb'e dedication. — 14 Cyc. 1150; Sharpe v. Marks, 137 Ala. 147.

Final Settlement of Administrator. Appeal from Cleburne Chancery Court. Heard before Hon.' J. R. Barker, Special Chancellor. Pinal settlement by James A. Denman, administrator. The chancellor sustained exceptions to the report of the register and enhanced the liability of the administrator, from which judgment the administrator appeals.

Bill to Cancel Contract. Appeal from Clarke Chancery Court. Heard before Hon. Thomas H. Smith. Bill by Grant McCaskill against the Scotch Lumber Company to cancel a timber contract between the two. From a decree dismissing complainant’s bill, complainant appeals. ■ — The price paid for the timber and its true yalne is so greatly disproportionate as to constitute presumptive fraud. — Juean v. Toulman, 9 Ala. 684; 85 Ala. 260.

Bill to Enjoin Interference With a Public Alley. Appeal from Tuscaloosa Chancery Court. Heard before Hon. Alfred H. Benners. Bill by H. H. Cochrane, and others against Mrs. S. A. Purser, to prevent and enjoin the excavation, obstruction, building upon or otherwise interfering with a public alley. Prom a decree dismissing the bill on motion for want of equity complainants appeal.

<p> Bill to Cancel Judgement for Want of Service. </p> <p>Appeal from Lauderdale Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p> <p>Bill by Lydia McDonald against W. W. Cawhorn, as administrator of Betsie McOlusliey. From a decree for defendant, complainant appeals.</p> <p>The hill alleges that a judgment by default was rendered against complainant and her husband, F. S. Me-Donald, on a note, in the sum of $638.97 and costs, and that execution had issued on it and had been levied upon lands therein described; that the property so levied on has been advertised for sale in satisfaction of the execution, etc. The defense which complainant alleges she has to the judgment and the note upon which it is founded is that the note was executed by her husband, that no part of the consideration moved to her, and that some months after the note was executed she signed the same as surety for her husband. Upon this is based the allegation that the note is void, and the judgment obtained thereon as against her is also void. It is alleged that no notice of the filing of the suit was ever served on her, either by publication or otherwise, and that the court was without jurisdiction to hear and determine the cause. The proof showed a service of process upon the defendants in the suit, and the issue in dispute Avas whether it was in Tennessee or Alabama.</p> <p>The jurisdiction in personam of the courts of the state or county is confined to persons within its territorial limit, and service of process beyond such limits is ineffectual to 'confer such jurisdiction. — Ward v. Boyce. 152 N. Y. 191; Max-ican Ry. Go. v. Pinckney, 149 U. S. 194. The summons must be executed in accordance Avith the statute — Section 3273, Code 1896. Equity will relieve against judgment purporting to have been rendered by default where the allegations and proof shoAV that defendant was not served with process and has a good and meritorious defense.- — Dunklin v. Wilson, 64 Ala. 162; Rice v. Tobias, 89 Ala. 214. Under the allegations of the bill, the complainant had a meritorious defense. — Vincent v. Walker, 93 Ala. 165; Harden v. Darwin, 77 Ala. 472; R.ussell v. Peevey, 131 Ala. 567.</p> <p>Tbe burden of proving that tbe service was made in another state is upon tbe complainant. — Dunklm v. Wilson, 64 Ala. 162. Tbe service was sufficient. — 113 Ala. 626. Before tbe complainant was entitled to relief it must appear that she bad no notice or knowledge of tbe suit and bad a meritorious defense. — Dunklm v. Wilson, supra. And this burden is upon tbe complainant. — 96 Ala. 269; 110 Ala. 487.</p>

Bill to Wind Up Corporation. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Bill by C. B. Sullivan, trustee, against Central Land Company of Birmingham and others. From a decree overruling demurrers to the bill and a motion to dismiss, defendants appeal. This bill is exhibited by G. B. Sullivan, as trustee under a deed of assignment made by M. Tabler, against the Central Land Company of Birmingham, a corporation, and the stockholders thereof.

Bill to Foreclose Mortgage. Appeal from Monroe Chancery Court. Heard before Hon. Thomas H. Smith. Bill by J. D. Shivers against George W. Broughton and another. From a decree awarding relief to complainant, and fixing the compensation of E. Broughton, as receiver, the latter appeals, and the former brings cross-appeal. Affirmed. One of the defendants, Alex.

Bill to Declare a Partnership and an Accounting and Dissolution. Appeal from Crenshaw Chancery Court. Heard before Hon. W. L. Parks. Bill by T. U. Butts against J. T. Cooper for an accounting and dissolution of partnership, and to declare a trust in certain property in favor of complainant and against respondent. From a decree dismissing the bill, complainant appeals. A partnership was created. — 3 Pom. Eq.

Bill for the Removal of Trustees and the Appointment of Others, and to Oharge the Removed Trustees With a Devastavit. Appeal from Montgomery City Court. Heard before Hon. A. D. Sayre.

Bill to Declare an Ordinance Null and Void. Appeal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Bill by the Bessemer Waterworks against the city of Bessemer. Prom a decree denying defendant’s motions to dissolve the preliminary injunction and to dismiss the bill for want of equity, and overruling demurrers, defendant appeals.

Bill to Quiet Title. Appeal from Walker Chancery Court. Heard before Hon. Alfred H. Benners. Bill by Dennis Swindle against the Corona Coal & Iron Company, to quiet title. From a decree dismissing the bill for want of equity, and allowing complainant-twenty days within which to amend the bill so as to give it equity, respondent appeals.

Bill to Quiet Title. Appeal from Jeeffrson Chancery Court. Heard before Hon. ja. H. Benners. Bill by J. A. McDaniel against the Sloss-Sheffield Steel & Iron Company, and against the Tennessee Coal, Iron & Railroad Company, to quiet title to certain lands described in the bills. The two cases are tried together by agreement and submitted on appeal together. From a decree for respondents, plaintiffs appeal.

Bill to Set Aside Sale of Lands Made Under a Reversed Decree. Appeal from Geneva Chancery Court. Heard before Hon. W. L. Parks. Bill by Dr. S. Carroll against J. W. Drauglion and others. From an order dismissing the bill, complainant appeals.

<p> Bill to Enjoin Condemnation Proceedings and Enforce a Trust. </p> <p>Appeal from Talladega City Court.</p> <p>Heard before Hon. G. K. Miller.</p> <p>Bill by the Louisville & Nashville Bailroad Company against the Birmingham & Atlantic Air Line Railway Company, and the Louisville Property Company to enjoin condemnation proceedings instituted by the B. & A. A. R. R. Co. against the Louisville Property Company, and to enforce a resulting trust. Motion was made to dismiss the bill for want of equity and to dissolve a temporary injunction issued. From a decree denying the motion, the respondent railroad company appeals.</p> <p>A motion to dissolve an injunction can be predicated either upon a want of equity in the bill, or upon SAVorn ansAver denying the allegations thereof. — E. d W. B. R. Oo. v. E. T. V. d G. R. R. Oo., 75 Ala 278. Condemnation proceedings are not in rem but in personam and not- binding on the owner unless made a party. — Hunt v. Aeree, 28 Ala. 593; Branch Bank v. Hoclges, 12 Ala. 118; Gritton v. Andrews, 10 Ala. 166; Oioen v. Bcmhhead, 76 Ala. 143; O. d W. Ry. Go. v. Witherow, 82 Ala. 192. The right to take under power of eminent domain cannot be frustrated by any contract between private parties or betAveen the condemnor and the owner of the land. — 1 LeAvis on Eminent Domain, p. 623. The legislature may authorize one railroad to take the property of another by express Avords or by necessary implication. — Motile, etc., R. R. Go. v. Midland R. R. Co., 87 Ala. 501; 6 A. & E. Ency. of awL, 533; 21 Am. Rep. 643. The trustee and not the cestui que trust is the proper party against whom to bring condemnation proceedings. — 6 A. & E. Ency. of Law, 609, and note.'</p> <p>On motion to dismiss the allegations of the bill are taken as confessed. whether well or badly pleaded. — Blackburn v. Fitzgerald, 130 Ala. 584; West v. L. & N. R. R. Go., 137 Ala. 572. Under the facts in this case the L. & N. R. R. Co., was the equitable owner of the land and had a resulting trust therein. The Louisville Property Company is a mere conduit of title and without beneficial interest in the property. — Lehman v. Lewis, 62 Ala. 129; Tillman v. Morrell, 120 Ala. 239; Long v. Meacham, v42 Ala. 405. One public Service corporation cannot appropriate or condenmn lands of another public service corporation without alleging and proving that the use for which it is proposed to take such land will not materially interr fere with the use to which said property is already subjected. — General Acts 1903, p. 376. It is sufficient to prevent condemnation that it has been acquired for public use and is about to be put to such use. — M. & G-. R. R. Go. v. Ala. Mid. R. R. Go., 87 Ala. 501; A. ■& G. R. R. Go. v. J. G. ú A. R. R. Go., 82 Ala. 297; 15 Cyc. 614; 1 Lewis on Eminent Domain, p. 627. The chancery court had jurisdiction to enjoin condemnation proceedings regardless of the solvency or insolvency of the corporation and of the inquiry whether or not the complainant could recover and realize compensatory damages at law.— Gity Council of Montgomery v. Lemle, 121 Ala. 609;. Niehaus v. Cook, 134 Ala. 228. Injunction was necessary as there is no process of law by which complainant could intervene or make itself a party to the probate procedings.- — Fw parte Printupp, 87 Ala. 148; Renfroe v. Goetter, et al., 78 Ala. 314. The probate court has no jurisdiction over equitable matters and titles. — Penny v. Wellborn, 72 Ala. 58; Hinson v. Williamson, 74 Ala. 180; Creamer v. Holbrook, 99 Ala. 52.</p>

Bill to Atate Purchase Price on Account of Fraud and Misrepresentation. Appeal from Pike Chancery Court. Heard before Hon. W. L. Parks. Bill by George Neal and others against W. L. Williams and others, to abate tbe purchase price of certain land on account of fraud and misrepresentation as to tbe quality. From a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. Thomas H. Smith. Bill by Melazie M. Palliser individually, and as exec-trix of Frank D. Palliser, deceased, against the Home Telephone Company and others. From a judgment sustaining demurrers to the bill, complainant appeals.

Creditor’s Bill to Set Aside Mortgage. Appeal from Morgan Chancery Court. Heard before Hon. W. H. Simpson. Bill by Keith-Simmons & Co., as creditors of the mortgagor against C. Ed. Albes to declare his mortgage fraudulent and void as against creditors.

Bill to Subject Lwids to Satisfaction of Judgment Lien.. Appeal from Marengo Chancery Court. Heard before Hon. Thomas H. Smith. Bill by William Grant to enforce the lien of a judgment upon certain lhnds filed against the Edinburgh American Land Mortgage Company, and the judgment debtor. The Mortgage Company filed a cross bill asserting a superior lien under the mortgage. The chancellor dismissed the cross-bill and declined to dismiss the original bill.

Bill for Specific Performmice. Appeal from Tallapoosa Chancery Court. Heard before Hon. W. W. Whiteside. Bill by W. R. Taylor against E. D. Newton and others to compel specific performance of contract to convey land. Prom a judgment sustaining demurrers to the bill, complainant appeals. This was a bill filed by W. R. Taylor against Edwin D. Newton, J. H. Baird, and Edwin R. Freeman, as individuals and as partners, and the Hunnicutt-Neal Lumber Company.

Bill to Enforce Equitable Interest in Land. Appeal from Coffee Chancery Court. Heard before Hon. A. D. Foster, Special Chancellor. Bill by F. P. Rainer and another against Laura Ogle-tree and others to recover certain land and to compel defendants to convey all their interest therein, to complainants. From a decree overruling certain demurrers to the bill, defendants appeal. Reversed and rendered.

Bill to Reform Contract mid Enforce Guaranty. Appeal from Jefferson Chancery Court. Heard before 1-Ion. Alfred H. Benners. Suit by W. H. Merritt against Harry Coffin, as trustee, and others. From a decree dismissing the bill as to defendant Coffin, as trustee, and sustaining demurrers as to the other defendants, complainant appeals. The contract referred to in the opinion in this case is in the following language: “State of Alabama, Jefferson County.

Bill to Quiet Title. Appeal from Jackson Chancery Court. Heard before Hon. W. H. Simpson. Bill by John F. Proctor as administrator with the will annexed, of the estate of one Anderson, deceased, against the Nashville, Chattanooga & St. Louis Railway, to quiet title to certain lands therein described. From the decree granting relief respondent appeals.

Assumpsit. Appeal from Marshall Circuit Court. Heard before I-Ion. W. W. Haralson. Action by Smtih Bros. & Co. against J. M. Miller. Judgment for defendant. Plaintiffs appeal. This is an action of debt begun by appellants against appellee. The pleas were the general issue, payment, accord and satisfaction, and set-off. The facts are sufficiently stated in the opinion of the court.

Attachment. Appeal from Conecuh Circuit Court. Heard before Hon. J. C. Richardson. Action by R. -E. Williams against J. P. Reynolds and others From an order denying defendant’s petition for a supersedeas, they appeal.

<p>1. Municipal Corporations; Ordinances; Police Power. — An ordinance by the city of Mobile making it the'duty of the chief of the fire department to assign a fireman to attend all performances at any theatre, to be paid by the manager or owner of said theater, is within the charter and police power of the city, and is not unreasonable.</p> <p>2. Work and Labor; Implied Contract. — Where a fireman is assigned to duty at all the performances at a certain theater, and attends, under an ordinance requiring the assignment, and providing that the manager of the theater shall pay for such, attendance, a fireman so assigned may bring his action against the manager or owner of the theater for the reasonable compensation for his services.</p>

Assumpsit. Appeal from Baldwin Circuit Court. Heard before Hon, Samuel B. Brown. Action by John M. Green against the Southern States Lumber Company. From a judgment granting motion of plaintiff to set aside verdict for defendant, defendant appeals. The judgment entry is not sufficient to show a judgment of the court setting aside the verdict and granting a new trial. — Wright v. The State, 103 Ala. 95; Randall v. Worthington, 141 Ala. 497; Jasper Merc.

Action for Breach of Contract. Appeal from Morgan Circuit Court. Heard, before Hon. D. W. Speake. Assumpsit by J. H. Arnold & Co., against tbe Jones Cotton Company, for tbe breach of a mutual contract, relative to tbe purchase of cotton, in a certain district. From a judgment for defendant plaintiff appeals. If tbe contract is valid no evasion of it will be tolerated. — 3 A. & E. Ency. of Law, 885.

Assumpsit. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Action by Ignatius Green against P. F. Brady. From a judgment, for defendant, plaintiff appeals. This was an action in assumpsit to recover commission for the sale of real estate. The first count was for work and labor done; the second, for services rendered in the sale of certain property in Tuscaloosa; and the third, damages for the breach of an agreement in reference to the sale of property.

Assumpsit. Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Action by W. M. Tanner against Charley Landgrof. From a judgment for plaintiff, defendant appeals. This was an action to recover $3.50, the price of a hat, commenced by appellee against appellant. The defendant pleaded the general issue. There was verdict for plaintiff, and defendant appeals.

Assumpsit. Appeal from Colbert Circuit Court. Heard before Hon. Joseph N. Nathan. Action by Jolin Eunice against the Southern Railway Company. Judgment for plaintiff. Defendant appeals. Eunice sued appellant to recover $38, being wages earned by one Ernest Vaughan for the months of September and October, 1905.

Attachment. Appeal from Clarke Circuit Court. Heard before Hon. John T. Lackland. Action by the First National Bank of Thomasville, Ala., against John R. Gobey, doing business as tbe Whatley Sawmill. Judgment for defendant. Plaintiff appeals. The bank sued out an attachment against John R. Gobey, doing business, etc., and had the same levied on certain property as the property of Gobey. The other facts are sufficiently stated in the opinion of the court.

Assumpsit. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Action for breach of guaranty by the First National Banb of G-adsden against Samuel Leftkovitz. From a judgment for plaintiff defendant appeals. This was an acton to enforce an agreement which is in words and figures as follows: “State of Alabama, County of Etowah.

Assumpsit. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action by D. W. Morris & Bro. against M. A. Ponder. Prom a judgment for plaintiffs, defendant appeals. This was an action by D. W. Morris & Bro. and the individual members composing the partnership against M. A. Ponder. The first count was for balance due on goods, wares, and merchandise, sold and delivered to defendant in 1902.

Assumpsit. Appeal from Crenshaw Circuit Court. Heard before Hon. J. C. Richardson. Action by the McCormack Harvesting Machinery Company in assumpsit against J. A. Clayton and others. From a judgment for defendants plaintiffs appeal. Counsel discuss the assignments of error but do not touch on the matter discussed in the opinion.

Assumpsit. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Blown. Assumpsit by tbe Mississippi Lumber Co., against Smith & Co., for lumber sold'. Under tbe adverse rulings of tbe court plaintiff was forced to a non-suit with bill of exceptions. An objection to a deposition on a specified ground is a waiver of all other grounds of objection. — 3 Mayf. 24.

Assumpsit. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Action by E. O. McCord against the Eagle Iron Co. and another, in assumpsit. There was judgment for plaintiff, and defendant Eagle Iron Co., appeals. Contracts with other than the plaintiff and in no way connected with the suit are not admissible. — Berzell v. Maas, 116 Ala. 68.

Assumpsit. Appeal from Conecuh Circuit Court. Heard before Hon. J. C. Bichardson. Assumpsit by J. R. Tapia v. H. B. Wilkerson. Prom a judgment for defendant plaintiff appeals. Tbe court erred in refusing to permit appellant to' introduce testimony in rebuttal of the testimony' of the appellee that the security given by him was of the value of $914.— Huston Biscuit Go. v. Dial, 135 Ala. 168; M. ■& B. B. R. Go. v. Ladd, 92 Ala. 287; McIntyre v. White, 124 Ala. 177.

Action for Broker’s Commissions. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Assumpsit by Lee Moody doing business as Lee Moody & Co., to recover commissions as a real estate broker for an alleged sale of real estate listed with him by A. G-. Sharpley. From a judgment for plaintiff defendant appeals.

Damages for Breach of Contract to ¡Supply Water. Appeal from Jackson Circiut Court. Heard before Hon. W, W. Haralson. Action by N. C. Alston and another against the Broa-dus Cotton Mill for breach of defendant’s contract to-supply plaintiffs with water for domestic use, etc. From a judgment for defendant, plaintiffs appeal. It was shown that the contract was a verbal one, and made with Ray as general manager of the defendant corporation.

Suit to Recover Ex Officio Services. Apeal from Calhoun Circuit Court. Heard, before Hon. John Pelham. Action by I. E. Watson, clerk of the Calhoun county circuit court, against Calhoun county. From a judgment for plaintiff, defendant appeals. This is an a.ctiou by í.

Assumpsit. Appeal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Assumpsit by Z. Cross against the Alabama Lumber Company for the price of lumber sold and delivered, the action being in the common count. There was judgment for plaintiff and defendant appeals.

Assumpsit. Appeal from Montgomery City Court. Heard before Hon. A. D, Sayre. Assumpsit by Alexander Troy, as surviving partner, and others, against Mary W. Tisdale as administratrix of tbe estate of W. H. Tisdale, deceased, to recover for services alleged to bave been rendered to tbe intestate. From a judgment for plaintiff defendant appeals.

Action for Breach of Contract. Appeal from Birmingham City Court. ' Heard before Hon. C. W. Ferguson. Action for breach of contract by the Birmingham Matinee Club against M. F. McCarty. From a judgment for defendant, plaintiff appeals.

Assumpsit. Appeal from Madison Circuit Court. Heard before Hou. Paul Speaks. This was an action on the common counts begun by appellee against appellant. The 7th, 8th, 9th pleas set up a contract in writing between the parties for the purchase of wood calling for ten or twelve cars of four foot wood a week, ash, oak, hickory, mulberry, at $1.50 per cord, cars Crow Creek or Stevenson which it is agreed shall be paid for every Saturday until the 20th of January.

<p> Assumpsit. </p> <p>Appeal from Clay County Court.</p> <p>Heard before Hon. W. J. Pearce.</p> <p>Action by the First National Bank of Lineville against T. E. Alexander. From a judgment for defendant, plaintiff appeals.</p> <p>The complaint counted for recovery upon a non-negotiable promissory note executed by Alexander to one J. M. Minnis in the sum of $313.55, and by Minnig before maturity transferred to plaintiff. The case was tried upon issue joined upon the general issue, payment, and special plea No. 6, which is as follows; “(6) For further plea defendant says that plaintiff knew that the said note was to be paid in work, and after the execution and transfer of note to him agreed that the same should be paid in work, and after plaintiff acquired the same from J. M. Minnis on the following terms: That all of the work and labor that the defendant did on the B. & L. R. R. grade was to be credited on said note, except enough to feed the mules, and that he was never to pay any money for them. And defendant avers that he paid to plaintiff by work on said grade all that was due on the said note prior to the commencement of this suit, and that the cashier of said bank, R. L. Ivey, when on the grade, informed Mm that he had paid off the note and that he would give the note to defendant. And defendant says that after this he was paid all his money he earned by labor on said grade; that cashier promised to bring the note to defendant on the grade, but he never came again.” Demurrers were interposed to this plea as follows: “(1) It is not averred that Ivey, as cashier, had authority to make agreement as set forth in said plea. (2) Said agreement is an ultra vires act on the part of Ivey as cashier of the bank, in that he was without authority to bind the bank by a contract for work and labor to be performed in grading a railroad.” Other demurrers raised similar propositions. These demurrers were overruled, and on final hearing there was judgment for defendant.</p> <p>The court erred in overruling plaintiff’s demurrer to special plea No. 6.— 21 A. & E. Ency. of Law, 352-372; sec. 5136, subd. 7, Rev. St. of U. S.; Met. Stock Exchange v. Lyndonville Eat. Bank, 57 Atl. 101; 167 U. S. 362; 174 U. S. 364; 165 Mass. 120; 63 Aide. 418; Ghewacla Lime Works v. Dis-mukes, 87 Ala. 344. A corporation is not estopped from setting up the invalidity of a contract that is ultra vires by reason of having received benefits under the contract. ■ — Sherwood v. Alms, 83 Ala. 115; Ghewaolct Lime Works v. Dismukes, supra.</p> <p>It is well settled in this state that parties to a contract in writing may alter or modify or rescind the same subsequent to its execution by a parol agreement. — Smith v. Garth, 32 Ala. 368; Burkham v. Mastín, 54 Ala. 122; Cooper v. McElwain, 58 Ala. 296; Hartford, et al. v. Attalla, 119 Ala. 59. Even if the contract is ultra vires neither party can avail himself of the same if it has been fully performed by one party, and the other party has received the full benefit of the performance. — 29 A. & E. Ency. of Law, pp. 45-6.</p>

Assumpsit. Appeal from Crnshaw Circuit Court. Heard before Hon. J. C. Richardson. Action by the Bank of Luyeme against C.K. Sharpe. From a judgment sustaining demurrers to the complaint plaintiff appaels. Action against an indorser of several promissory notes, the principal to which is not sued.

Assumpsit. Appeal from Randolph Circuit Court. Heard before Hon. S. L. Brewer. Assumpsit by Daniel Butler on a quantum meruit for services rendered to the intestate of A. J. Kent. There was judgment for defendant and plaintiff appeals.

Detinue. Appear from Morgan Circuit. Heard before Hon. D. W. Speaks. Detinne by James W. Hensley against I. Walton. The defendant, Walton, ipte'rpleaded suggesting Eliza A. Orendorff and others as claimants to the property sued for. There was judgment for claimant and plaintiff appeals.

Detinue. Appeal; Decisions Reviewable; Favorable Judgment. — Where the decision of the lower court is favorable to the party taking the appeal and no objection is taken to the action of the lower court in rendering the judgment, the appeal will be dismissed. Appeal from Morgan Circuit Court. Heard before Hon. W. RjFrancis, Special Judge. Detinue by W. H. Derrick against Richard Shaney-felt. From judgment for plaintiff, plaintiff appeals.

Detinue. Apeal from Anniston City Court. Heard before Hon. Thomas W. Coleman, Jr. Detinue by the Art Metal Construction Company against Calhoun county. From a judgment for plaintiff, defendant appeals.

Detinue. Appeal from Geneva County Court. Heard before Hon. P. N. Hickman. Detinue by J. J. Johnson against J. D. Wilson. From a judgment for plaintiff, defendant appeals. This was an action of detinue for the recovery of a mule. The facts sufficiently appear in the opinion of the court.

Detinue. Appeal from Tuscaloosa County Court. Heard before Hon. H. B. Foster. Detinue by Theodore Plummer against L. B. Hardi-son and others for the recovery of a saw mill edger. There was judgment for plaintiff and defendants appeal, and separately assign error. Upon the foreclosure of the mortgage it became an executed contract. — ■Diefmbaclc v. Vaughan, 116 Ala. 154.

Trespass. Appear from Morgan Circuit Court. Heard before Hon. D. W. Speaice. Action by James Speakman against J. W. Vest. From a judgment for defendant, plaintiff appeals. Plaintiff claimed the borse as a gift from his father. The defendant set up that the horse was mortgaged by W. I. Speakman, who was the owner and in possession of the horse at the time of the mortgage, and the father of the plaintiff.

Trespass and Trover. Appel from Talladega City Court. Heard before Hon. G. K. Miller. Action by M. M. Perry against A. H. Hackney and others. From a judgment for plaintiff, defendants appeal. The defendants named in the summons and complaint are A. H. Hackney, Mary Hackney, and John L. Law, individually and as partners doing business under the firm name of Hackney Bros., and R. B. Burns.

Trespass Q. G. F. and Trover. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Action by Lula G. Poivers and others against Thomas A. Hatter and others in trespass and trover for cutting and carrying aivay timber from certain land. Judgment for defendants, and plaintiffs appeal.

Trespass to Realty. Appear from Sumter Circuit Court. Heard before Hon. John T. Lackland. The first, second, third, fourth, fifth, and sixth counts claim damages for trespass by defendant or its agent, appellee here, on a certain lot described therein, and the trespass alleged is the going upon and tramping on the ground, and shipping therefrom and receiving thereon a large amount of cotton seed.

<p> Petition to Sell Lands to Pay Debts. </p> <p>Appeal from Marengo Probate Court.</p> <p>Heard before Hon. A. L. Hasty.</p> <p>Petition by Morris Mayer, administrator of the estate of Allen Kornegay, for the sale of land of his in-Intestate for the payment of debts. The petition was contested by Thornton Kornegay and others, heirs of Allen Kornegay. From, a decree dismissing the petition, the administrator appeals.</p> <p>Morris Mayer, as administrator of the estate of Allen Kornegay, filed his petition, containing the necessary statutory averments, seeking the sale of certain lands belonging to his intestate for the payment of the debts of said estate. In contestation of the application the heirs filed the following plea: “That the application should be denied and a decree rendered dismissing such petition on the following ground, to-wit: That on the 11th day of December, 1903, Mayer, as administrator of the estate of Allen Korengay, deceased, filed a petition in the probate court of Marengo county, Ala., which petition was in words and figures as follows: [Here follows a copy of the petition.] That on the 13th day of March, 1905, the said Mayer duly appeared by his.attorney of record, and the minor heirs and Eva-line Kornegay, who is of unsound mind, were duly represented by B. F. Gilder, as guardian ad litem, and the contestants were duly represented by their attorney of record, and a trial was had in said cause, and the probate court rendered the following decree, which is in words and figures as follows: [Here follows a copy of the decree dismissing the petition for failure of the administrator to show that the personal property belonging to the estate was not sufficient to pay the debts of said estate, and for a failure to show that it was necessary to sell the said lands for the payment of the debts.] And contestants aver that the parties are the same as in the present application, except that Ruffin Kornegay has since died without issue; that the said probate court of Marengo county, Ala., is a court of competent jurisdiction of the matters involved in said cause of action; that the decree rendered dismissing the said cause out of said court was rendered after the merits of said cause had been considered by the court; that said application sought to have sold the same land for the payment of debts as in the present application. And contestants aver that at the time the debts claimed to be owing by said Korengay, deceased, were a debt due Mayer Bros, and a debt due John C. Webb, and that the said debt now claimed to be due by the said Korne-gay, deceased, is the same debt due John C. Webb, which debt the said Webb has since that time reduced to a judgment, and the debt claimed to be due and owing the said Mayer Bros, has been transferred to one J. F. Compton, who has reduced the same to judgment. And contestants aver that these are the same debts that were claimed to be due and owing when said former trial was had on the 13th day of March, 1905, and were in issue at said former trial.” The guardian ad litem filed a plea of similar import. The following demurrers were interposed to the pleas: “(1) Because it shows on its Pace that the judgment of the court rendered March L3, 1905, was not a final judgment on the merits. (2) Because it shows 'on its face thajt the judgment on March 13, 1905, was a judgment of dismissal only, and not a final judgment. (3) Because it shows on its face that the judgment oh March 13, 1905, is a nonsuit, and not pleadable as res adjudicata. (4) Because it shows on its face that the judgment of March 13, 1905, was on the facts as presented at the time of trial, that the fact not proven was the failure to show 'that the personal property was not sufficient to pay the debts of said estate,’ and that this failure applied only to the time of trial, and does not apply to the time of filing of this application. (5) Because said plea fails to allege that there is personal property sufficient to pay the debts of tbe estate. (6)' Because it is shown that the matters and things alleged therein are not res adjudicaba, and that said judgment is conclusive only of the status at the time of the trial, and the plea is set up as an answer to a petition setting up an entirely different status at an entirely different time.” These demurrers being overruled, the petitioner filed the following replications : “That after said judgment of dismissal ivas rendered John 0. Webb and James F. Compton did sue in the circuit court of Marengo county, Ala., a court having jurisdiction of said claims, and did during the fall term of said circuit court in the year 1905 recover judgments in said circuit court for said debts, as will appear from the certified copies of the said judgments attached to the petition to sell said lands, and said judgments are subsisting debts against the said estate; and he avers that there is now no personal property belonging to said estate suficient to pay the said judgments.” The following demurrers were interposed to this replication by the guardian ad litem and the other contestants: “(1) Said replication is no answer. (2) No facts are alleged that show that the debts now sought to be paid are not the same debts which were formerly sought to be paid in this cause. (3) It fails to show that there are any new debts against said estate since the trial of-this cause before. (4) It fails to show that there is not now the same amount of personal property belonging to said estate as there was at the former trial of this cause. (5) It fails to show that there has been any loss or destruction of the personal property belonging to said estate since the last trial of said cause.” Demurrers were sustained to said replication, and the application Avas dismissed.</p> <p>The judgment was a judgment of dismissal or non suit and not a final judgment or decree to support the plea of res adjudi-cata. Section 168, Code 1896. — ■State ex rel. Craft v. Williams, 131 Ala. 56. Dismissal under a code procedure is equivalent to a non suit in actions at law. — ■ 6 Cjc. P. & P. 828-9. It is the final ending of the suit, not a final judgment of the controversy. — 6 Ency. P. & P. 875; 14 Cyc. 391; Taft v. N. T. Co., 56 N. H. 417. It is not the equivalent of a retraxit. — Bullock v. Perry, 2 S. & P. 319. Judgment of non suit and dismissal cannot be held as res adjudicata. — Motile L. & R. R. Co. v. Hanson, 135 Ala 284; State ex rel. Craft v. Williams, supra.</p> <p>The court rendered the only decree it could have rendered. — Section 168, Code 1896. The plea of res adjudicata was good. — Ford v. Ford, 68 Ala. 141; McAuley v. Robinson,, 70 Ala. 433; Chardovoyne v. Lynch, 82 Ala. 376; Wood v. Wood, 134 Ala. 567; 143 Ala. 656.</p>

Sale of Lands for Division. Appeal from Greene Probate Court. Heard before Hon. A. P. Smith. Petition by Annie Grigsby and others against John D. McQueen, as guardian for certain minors, etc., for a sale of land division. From a decree for petitioners,, defendant appeals. Petition for a sale of land for a division among the joint owners thereof.

Heard before Hon. D. W. Speaks. Action by B. P. Weeden against J. A. Bradford. From an order of the circuit court directing the sale of land levied on by a constable under an execution- issued by a justice of the peace, defendant appeals. The judgment was dormant as no execution has been issued for more than three years after the first execution, which issued within six months. — Secs. 1951, 1952, Code 1896; Jones v. Gollotcay, 56 Ala. 46.

Common Law Certiorari to Quash Judgment. Appear from Bibb Circuit Court. Heard before Hon. B. M. Midler. Certiorari by J. W. Smith against J. M. Cottingham to quash a judgment of a justice of the peace rendered for Cottingham and against Smith. From a judgment annulling the judgment in the justice’s court, Cotting-ham appeals.

<p> Assumpsit. </p> <p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. John H. Disque.</p>

<p> Assumpsit. </p> <p>Appeal from Houston Chancery Court.</p> <p>Heard before Hon. W. L. Pabks.</p>